Bretscher v. Christopher

50 Misc. 2d 61, 269 N.Y.S.2d 729, 1966 N.Y. Misc. LEXIS 2122

• Court: New York Supreme Court
• Decided: March 7, 1966
• Status: Published

Opinion

Louis G. Bruhn, J.

This is a motion on behalf of the defendant for partial summary judgment dismissing that part of plaintiff’s complaint which alleges and seeks to recover therefor money damages.

The base action is one in trespass in which the plaintiff seeks relief “ (1) that defendant, * * *, be enjoined and restrained during the pendency of this action and permanently from trespassing upon plaintiff’s property or any portion thereof, * * * ; (2) that plaintiff be given judgment against defendant for the sum of Five Thousand ($5,000.) Dollars damages sustained by her as aforesaid.”

Such damages apparently are encompassed in paragraph “ 10.” of the complaint, which alleges: “ and if the alleged acts are permitted to continue, plaintiff will suffer permanent and irreparable injury to her health as well as to her property,”

CPLR 3212 (subd. [e]) provides, in part: “in any action summary judgment may be granted as to one or more causes of action, or part thereof, in favor of any one or more parties, to the extent warranted, on such terms as may be just.” (Italics supplied.)

This section or at least its predecessor has been interpreted to hold that no separate judgment may be granted as to separate items of damages only. (Luotto v. Field, 294 N. Y. 460.)

Since this is essentially what the defendant is seeking, her motion must be and hereby is denied, without costs.